A-12057, MARCH 11, 1926, 5 COMP. GEN. 720

A-12057: Mar 11, 1926

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FRACTIONAL DAYS - APPLICATION OF COURT DECISIONS AN OFFICER OR EMPLOYEE OF THE GOVERNMENT WHO IS ABSENT FROM HIS DESIGNATED POST OF DUTY OR OFFICIAL HEADQUARTERS FOR A PART OF A DAY BETWEEN THE HOURS OF 8 A.M. IS NOT IN A TRAVEL STATUS AND IS NOT ENTITLED TO REIMBURSEMENT FOR EXPENSES INCURRED EITHER ON A PER DIEM IN LIEU OF OR ACTUAL EXPENSE. THE QUESTION WHETHER A RULING OF A COURT IN A PARTICULAR CASE IS APPLICABLE TO CLAIMS INVOLVING THE PAYMENT OF APPROPRIATED MONEYS IN SIMILAR CASES IS FOR DETERMINATION BY THE COMPTROLLER GENERAL OF THE UNITED STATES AND NOT BY THE INDIVIDUAL CLAIMANTS OR THE ADMINISTRATIVE OFFICIALS CONCERNED. THE REASONS ASSIGNED FOR THE DISALLOWANCE OF THIS CHARGE WERE: IT HAS BEEN HELD BY THIS OFFICE WHERE AN EMPLOYEE IS ABSENT FROM HIS OFFICIAL STATION ON OFFICIAL BUSINESS FOR A PERIOD OF 10 HOURS OR LESS.

A-12057, MARCH 11, 1926, 5 COMP. GEN. 720

SUBSISTENCE, FRACTIONAL DAYS - APPLICATION OF COURT DECISIONS AN OFFICER OR EMPLOYEE OF THE GOVERNMENT WHO IS ABSENT FROM HIS DESIGNATED POST OF DUTY OR OFFICIAL HEADQUARTERS FOR A PART OF A DAY BETWEEN THE HOURS OF 8 A.M. AND 6 P.M., IS NOT IN A TRAVEL STATUS AND IS NOT ENTITLED TO REIMBURSEMENT FOR EXPENSES INCURRED EITHER ON A PER DIEM IN LIEU OF OR ACTUAL EXPENSE, BASIS. THE QUESTION WHETHER A RULING OF A COURT IN A PARTICULAR CASE IS APPLICABLE TO CLAIMS INVOLVING THE PAYMENT OF APPROPRIATED MONEYS IN SIMILAR CASES IS FOR DETERMINATION BY THE COMPTROLLER GENERAL OF THE UNITED STATES AND NOT BY THE INDIVIDUAL CLAIMANTS OR THE ADMINISTRATIVE OFFICIALS CONCERNED.

DECISION BY COMPTROLLER GENERAL MCCARL, MARCH 11, 1926:

F. K. NEWCOMER, MAJOR, CORPS OF ENGINEERS, BY LETTER DATED NOVEMBER 14, 1925, REQUESTED REVIEW OF THE ACTION TAKEN BY THIS OFFICE IN SETTLEMENT CERTIFICATE NO. M-15501-W, DATED OCTOBER 19, 1925, IN DISALLOWING CREDIT FOR AN ITEM OF 50 CENTS REPRESENTING PAYMENT ON VOUCHER 9, APRIL, 1925, OF HIS ACCOUNT, TO W. O. WHITESCARVER, ASSISTANT ENGINEER, CHARLESTON, S.C., AS REIMBURSEMENT FOR DINNER TAKEN AT KINGSTREE, S.C., WHILE ABSENT FROM THE POST OF DUTY. THE REASONS ASSIGNED FOR THE DISALLOWANCE OF THIS CHARGE WERE:

IT HAS BEEN HELD BY THIS OFFICE WHERE AN EMPLOYEE IS ABSENT FROM HIS OFFICIAL STATION ON OFFICIAL BUSINESS FOR A PERIOD OF 10 HOURS OR LESS, BETWEEN THE HOURS OF 8 A.M. AND 6 P.M. SUCH EMPLOYEE IS NOT IN A TRAVEL STATUS WITHIN THE MEANING OF LAWS AUTHORIZING REIMBURSEMENT OF SUBSISTENCE EXPENSES EITHER ON ACTUAL EXPENSES BASIS OR A PER DIEM BASIS AND IS CONSEQUENTLY NOT ENTITLED TO REIMBURSEMENT FOR ANY SUBSISTENCE EXPENSES INCURRED THEREIN. 4 COMP. GEN. 331.

IN HIS REQUEST FOR REVIEW THE ENGINEER OFFICER STATES:

THE EMPLOYEE IN QUESTION, PROVIDED WITH PROPER TRAVEL ORDERS, JOURNEYED FROM CHARLESTON, S.C., TO KINGSTREE, S.C., ON OFFICIAL BUSINESS. THE DISTANCE TRAVELED WAS APPROXIMATELY 63 MILES EACH WAY, AND HIS USUAL MID- DAY MEAL TIME FOUND HIM IN KINGSTREE, S.C. THIS CONDITION OBVIOUSLY INTERFERED WITH HIS USUAL DOMESTIC ARRANGEMENTS FOR LUNCH AND NECESSITATED HIS PURCHASING A MEAL OR DOING WITHOUT. IT IS NOT BELIEVED THAT THE ORDERS REQUIRING HIM TO PERFORM THE JOURNEY IN THE PUBLIC SERVICE SHOULD PLACE HIM UNDER THE OBLIGATION OF OMITTING A MEAL AT THE USUAL MEAL TIME, AND THE PURCHASE OF FOOD AT REASONABLE COST AND AT PUBLIC EXPENSE SEEMS PROPER UNDER THE CIRCUMSTANCES.

ATTENTION IS RESPECTIVELY CALLED TO THE FOLLOWING REGULATION ISSUED BY THE CHIEF OF ENGINEERS AND APPROVED BY THE SECRETARY OF WAR:

"CIVILIAN EMPLOYEES TRAVELING UNDER PROPER ORDERS ON OFFICIAL BUSINESS AWAY FROM THEIR PERMANENT STATION WILL BE REIMBURSED FOR ALL ACTUAL AND NECESSARY EXPENSES INCURRED IN CONNECTION WITH SUCH OFFICIAL BUSINESS FOR FRACTIONAL PARTS OF A DAY, PROVIDED, THAT REIMBURSEMENTS FOR MEALS TAKEN ON SUCH TRAVEL WILL BE MADE ONLY WHEN SAME ARE TAKEN AT THE REGULAR MEAL TIMES IN THE PLACES WHERE THE TRAVEL IS BEING PERFORMED.' COURT OF CLAIMS, WARD V. U.S., E-77, DATED JUNE 15, 1925, J.A.G. AND SEC. OF WAR, 2306 (PITTS. D.O./-1.

THIS REGULATION IS PUBLISHED AS PARAGRAPH 411-6A, ORDERS AND REGULATIONS, CORPS OF ENGINEERS, U.S. ARMY.

THE DUTY PERFORMED BY THE ASSISTANT ENGINEER IN CONSEQUENCE OF WHICH THIS CHARGE FOR SUBSISTENCE AROSE WAS PURSUANT TO AN ORDER DATED APRIL 3, 1925, ISSUED BY MAJOR NEWCOMER WHO SIGNS AS DISTRICT ENGINEER WITH OFFICE AT CHARLESTON, S.C., AS FOLLOWS:

1. YOU WILL PROCEED TO KINGSTREE, S.C., ON DUTY IN CONNECTION WITH HEARING REGARDING PROPOSED CONSTRUCTION OF BRIDGE ACROSS BLACK RIVER, S.C., NEAR KINGSTREE, S.C., AND ON COMPLETION OF SUCH DUTY RETURN TO YOUR STATION AT CHARLESTON, S.C.

2. REIMBURSEMENT OF NECESSARY TRAVELING EXPENSES INCURRED ON THE JOURNEY WILL BE MADE IN ACCORDANCE WITH PAR. 411, O. AND R.

3. THE TRAVEL DIRECTED IS NECESSARY IN THE PUBLIC SERVICE.

THE VOUCHER IN PAYMENT OF THE CHARGE FOR SUBSISTENCE DISCLOSED THAT UNDER THIS ORDER MR. WHITESCARVER ON APRIL 4, 1925, PROCEEDED BY GOVERNMENT- OWNED AUTOMOBILE FROM CHARLESTON, S.C., TO KINGSTREE, S.C., A DISTANCE OF 63 MILES, AND RETURN, LEAVING 8:30 A.M., ARRIVING KINGSTREE 11:45 A.M., LEAVING KINGSTREE 1:30 P.M., ARRIVING CHARLESTON 4:30 P.M. THE 50 CENTS CHARGED REPRESENTS A NOON MEAL ALLEGED TO P.M. THE 50 CENTS CHARGED REPRESENTS A NOON MEAL ALLEGED TO HAVE BEEN OBTAINED AT KINGSTREE.

INFORMAL ADVICE HAS BEEN RECEIVED TO THE EFFECT THAT CHARLESTON ENGINEERING DISTRICT INCLUDES THE STATE OF SOUTH CAROLINA, SO THAT THE TRAVEL PERFORMED WAS INCIDENT TO PERFORMANCE OF DUTY WITHIN THE DISTRICT, SECTION 9 OF THE ACT OF JULY 18, 1918, 40 STAT. 912, PROVIDES:

THAT HEREAFTER WHEN THE EXPENSES OF PERSONS ENGAGED IN FIELD WORK OR TRAVELING ON OFFICIAL BUSINESS OUTSIDE OF THE DISTRICT OF COLUMBIA AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY ARE CHARGEABLE TO APPROPRIATIONS OF THE ENGINEER DEPARTMENT, A PER DIEM OF NOT EXCEEDING $4 MAY BE ALLOWED IN LIEU OF SUBSISTENCE WHEN NOT OTHERWISE FIXED BY LAW.

THIS ACT IS, IN EFFECT, AN AMENDMENT TO THE ACT OF MARCH 3, 1875, 18 STAT. 452, BEING SIMILAR IN THAT RESPECT TO THE ACT OF APRIL 6, 1914, 38 STAT. 318, AND ACT OF AUGUST 1, 1914, 38 STAT. 680. THE BASIC CONDITION OF ALL THESE ACTS IS THAT THERE SHALL BE NOT ONLY AN ACTUAL OR PRESUMPTIVE EXPENSE OF SUBSISTENCE BY REASON OF TRAVEL UPON PUBLIC BUSINESS, BUT SUCH ACTUALITY SHALL REPRESENT AS WELL EXPENSES WHICH THE EMPLOYEE NECESSARILY INCURRED IN ADDITION TO THE EXISTING DOMESTIC MAINTENANCE, THE LAW MERELY AIMING TO MAKE AN EMPLOYEE WHOLE FOR ANY EXTRA EXPENSE PUT TO BY AN ENFORCED ABSENCE FROM HIS OFFICIAL STATION ON PUBLIC BUSINESS. WHERE A DUTY WHICH AN EMPLOYEE PERFORMS REQUIRES BUT A SHORT TRIP OF A FEW HOURS, AND PARTICULARLY BY A PUBLIC VEHICLE INTO THE DISTRICT IN WHICH HIS REGULAR OFFICIAL DUTIES ARE TO BE PERFORMED, ANY TRAVEL INVOLVED UNDER SUCH CIRCUMSTANCES ON DISTRICT BUSINESS PLACES AN EMPLOYEE IN THE STATUS OF SIMPLY OPERATING FROM A CENTRAL OFFICE TO NEAR-BY POINTS INTO THE SURROUNDING LOCALITY, FOR WHICH ONLY COST OF TRANSPORTATION IS INVOLVED AND PAYABLE, RATHER THAN IN A TRAVEL STATUS OF AN EMPLOYEE AWAY FROM HIS OFFICIAL STATION FOR SUCH A PERIOD OF TIME, AND UNDER SUCH CONDITIONS, AS WOULD NECESSARILY CAUSE THE INCURRING OF LIVING EXPENSES OVER AND ABOVE THOSE WHICH HE WOULD BE OTHERWISE REQUIRED TO BEAR. 20 COMP. DEC. 546; 26 COMP. DEC. 154; 3 COMP. GEN. 598; ID. 739; ID. 966. IT WAS THESE REASONS WHICH PROMPTED THE RULINGS OF THIS OFFICE, AS WELL AS THE FORMER OFFICE OF COMPTROLLER OF THE TREASURY, AND THE COURTS, THAT THERE IS NOT UNDER SUCH CONDITIONS A TRAVEL STATUS WITHIN THE MEANING OF THE ACTS AUTHORIZING TRAVEL SUBSISTENCE. THE DISTINCTION IS MOST APTLY AND CONCISELY DEFINED IN UNITED STATES V. SMITH, 158 U.S., AT PAGE 352, WHEREIN THE COURT STATES THAT:

* * * REIMBURSEMENT IS ONLY INTENDED IN CASES WHERE AN EXPENSE IS INCURRED IN THE SERVICES OF THE GOVERNMENT, WHICH WOULD NOT BE INCURRED IF THE CLAIMANT WERE LIVING AT HIS USUAL PLACE OF ABODE. * * *

IT IS CLEAR FROM THESE RULINGS THAT FOR AN EMPLOYEE TO BECOME ENTITLED TO ACTUAL EXPENSES OF SUBSISTENCE OR COMMUTATION THEREOF THERE MUST BE SOMETHING MORE THAN JUST LOCOMOTION DURING THE ORDINARY WORKING HOURS OF THE DAY IN WHICH ONLY THE MIDDAY MEAL IS REQUIRED TO BE TAKEN AWAY FROM THE PLACE WHERE THE EMPLOYEE ORDINARILY OBTAINS HIS MEALS AND LODGINGS, AND THAT SUCH SHORT LOCAL TRIPS DO NOT CONSTITUTE AN ABSENCE IN A TRAVEL STATUS ENTITLING TO REIMBURSEMENT OF THE COST OF SUBSISTENCE. 4 COMP. GEN. 331; ID. 466; ID. 745.

THERE IS NOTED THE REGULATION ISSUED WITH APPROVAL OF THE SECRETARY OF WAR, AS BULLETIN NO. 10, O.C. OF E., OCTOBER, 1925, DIRECTING THAT DECISION OF THE COURT OF CLAIMS IN WARD V. UNITED STATES, SHOULD BE FOLLOWED IN CASES SUCH AS ARE HERE INVOLVED, NOTWITHSTANDING THE DECISIONS AND SETTLEMENTS OF THIS OFFICE.

IT WAS SAID, IN EFFECT, IN A DECISION TO THE SECRETARY OF AGRICULTURE UPON SUBMISSION OF A LIKE QUESTION, 5 COMP. GEN. 100, THAT IN VIEW OF THE PRECEDENTS ESTABLISHED BY FORMER COMPTROLLERS OF THE TREASURY, AND THIS OFFICE, WHICH WERE BELIEVED TO BE CORRECT INTERPRETATIONS OF THE LAWS OF THE CONGRESS, AS WELL AS APPLICABLE PRINCIPLES IN HARMONY THEREWITH ANNOUNCED BY THE COURTS IN VARIOUS CASES, THAT THE MEMORANDUM OPINION BY THE COURT OF CLAIMS IN THE WARD CASE COULD NOT BE ACCEPTED BY THIS OFFICE AS ESTABLISHING A CONTRARY RULE FOR THE DISBURSEMENT OF GENERAL APPROPRIATIONS. IN THIS CONNECTION IT APPEARS PROPER TO REPEAT THE SENTIMENT OFTEN HERETOFORE EXPRESSED, THAT WHILE THE PROBLEMS CONFRONTING THE ACCOUNTING OFFICERS OF THE UNITED STATES, INVOLVING AS THEY USUALLY DO THE USES OF GENERAL APPROPRIATIONS, ARE NOT ALWAYS OR FREQUENTLY THE SAME AS THE PROBLEM WHICH CONFRONTS A COURT IN DETERMINING IN A GIVEN CASE WHETHER THERE EXISTS A LEGAL LIABILITY OF THE UNITED STATES, THE OPINIONS OF COURTS ARE EXCEEDINGLY HELPFUL TO THE ACCOUNTING OFFICERS AND ARE ALWAYS GIVEN MOST CAREFUL STUDY AND CONSIDERATION IN CONNECTION WITH THEIR WORK--- ESPECIALLY IS AN OPINION HELPFUL WHERE IT APPEARS A NEW PROBLEM THAT HAS BEEN GIVING TROUBLE HAS BEEN SO FULLY AND CAREFULLY PRESENTED AS TO GIVE THE COURT OPPORTUNITY TO CONSIDER THE SAME AND APPLY IN ITS DECISION THE LEGAL PRINCIPLES PROPERLY APPLICABLE THERETO. THE RESPONSIBILITY OF THE ACCOUNTING OFFICERS IS SUCH, HOWEVER, THAT IT MUST BE FOR THEM TO DETERMINE AS TO CASES BEFORE THEM, THE APPLICABILITY OF DECISIONS OF THE COURTS, RATHER THAN THE ADMINISTRATIVE OFFICIALS CONCERNED OR CLAIMANTS. SEE 3 COMP. GEN. 316, IN WHICH THIS OFFICE DID NOT APPLY THE DECISION OF THE COURT OF CLAIMS IN MANNING V. UNITED STATES, 58 CT.CLS. 195, WHICH DECISION OF THE COURT WAS, UPON A MORE COMPLETE PRESENTATION OF THE MATTER INVOLVED, REVERSED BY IT IN THAYER V. UNITED STATES, 60 CT.CLS. 870; ALSO 3 COMP. GEN. 479, DECLINING TO APPLY THE DECISION OF THE COURT IN BY THE COURT IN THE CASE OF GRACE SHOOK, ADMX. V. UNITED STATES, QUINN V. UNITED STATES, 58 CT.CLS. 481, WHICH DECISION WAS REVERSED BY THE COURT IN THE CASE OF GRACE SHOOK, ADMX. V. UNITED STATES.